Share This Page

A Look at Divorce Law in Canada

A farmer walks into a lawyer's office. "May I help you," asks the lawyer.
"Yea," replies the farmer. "I want to git one of those dayvorces."
The lawyer says: "do you have any grounds?"
The farmer says: "yes; I got about 140 acres."
"No, no." Says the lawyer. "Do you have a case?"
"Oh, a Case," replies the farmer. "No, but I have a John Deere."
"You don't understand," says the lawyer. "Do you have a grudge?"
"Yeah," says the farmer. "That's where I park my John Deere."
"Listen," says the lawyer. "Do you have a suit?"
"Yes, sir," replies the farmer. "And I wear it to church every Sunday."
"Look, sir," says the lawyer. "Does your wife beat you up or anything?"
"Nope," replies the farmer. "We both get up at 4:30."
Finally the lawyer says: "Okay. WHY do you want a divorce?"
"Oh," says the farmer. "Because I can never have a meaningful conversation with her."

"... legal separation of man and wife, effected either by the judgment or decree of a court, and either totally dissolving the marriage relation, or suspending its effects so far as concerns the cohabitation of the parties".

The Canadian constitution says that only the federal government can set divorce law.

The Government of Canada has a Divorce Act, and because it is a federal law, it applies fully and equally in all parts of Canada.

Canada has a "renovated" Divorce Act, which became law in 1968. This new law added to the requirement to show physical cruelty, mental cruelty or adultery and now allows for a divorce if the husband and wife have been separated for at least one year. This "no-fault" divorce means that most divorce applications to the courts are no longer contested. The parties usually agree on the divorce and other things like child custody and support.

This eliminates the need for a formal court hearing where both parties testify and ask for different things (not to mention the consequent legal fees required for legal representation in court). You can even buy a kit in some bookstores that allows you to complete your divorce without a lawyer.

Divorces begin with an application to the court asking it to declare that there has been a "breakdown of the marriage", to use the words of the Divorce Act. This application should have paragraphs that refer to where and when the marriage took place, who the children were, who should have custody of the children and why child support should be paid, the grounds of the divorce, if there is to be support for one of the spouses paid for by the other, and what is to become of the family property. Certified copies of the marriage certificate and any birth certificates is attached.

The claim for support is known as corollary relief and may be for the spouse and/or the children (claims for custody are also corollary relief claims). If corollary relief is requested, you would be well advised to prepare a financial statement which sets out your family's monthly expenses in detail.

The judge that will ultimately grant the divorce has an obligation to ensure that adequate arrangements have been made for the support of any children of the marriage. That is why the petition must answer so many questions: all the possible questions that a judge might ask.

Otherwise, the petition could be rejected or the parties could be summoned to an open and public court hearing.

Sometimes, two claims or petitions are filed to end the same marriage, each by one of the spouses (a person is allowed to bring their divorce petition anywhere in Canada provided they have been living in the province where they want to file their petition, for at least a year). Where two petitions are filed, it is the court which was the first to receive the petition that supersedes the later one.

Although the Divorce Act now allows no-fault divorce if the couple has been apart for a year, petitions based on the traditional grounds of cruelty or adultery can still be used. These are rare, now, and do not require a one-year waiting period.

Some jurisdictions also allow for penalties in costs where adultery can be proven, attracting certain litigants to these avenues and perpetuating the archaic venomous approach to these deep, personal disputes.

For an example of just such a nincompoop law, see section 123(4) of the British Columbia Family Relations Act which punishes the adulterous party by providing that:

"If, in a proceeding for judicial separation or dissolution of marriage on grounds of adultery, the person with whom the adultery is alleged to have been committed is served with notice of the proceedings and adultery is proved, the court may order that person to pay all or a part of the cost of the proceeding."

There is a fee for filing a claim or petition, generally in the area of $100 to $300 depending on the rules of the court in your community.

Part of that fee is to pay for a certificate from a central registry in Ottawa which will do a search to make sure that there is no other divorce application concerning the same couple elsewhere in Canada. Once the application is filed, the court will send a copy to the other party, who becomes known as the respondent (i.e. the person who "responds" to the petition). The respondent has a limited amount in time to send to the court a counter-application. This deadline varies from province to province but is generally 20 days.

The Divorce Act requires the court to verify whether there appears to be any possibility of reconciliation between the parties. The court can even ask a marriage counsellor to attempt to forge a reconciliation.

But judges don't flog dead horses and it is quite rare to see a judge interfere once a formal divorce petition has been filed {although it happened to me once. I was in Court at a pre-litigation mediation meeting and in response to the wise judge's gentle questions about their futures, both parties started whimpering about how they wouldn't mind another crack at their marriage. Luckily, the other lawyer was a nice guy and he played along as did the judge, who promptly adjourned the hearing. The parties lived happily ever after - the last I heard and that was seven years ago as of 2009. But that is a rare occurrence.}

If the application is contested, a hearing is scheduled and both parties are cross-examined by each other or their lawyers in court. This rarely happens; statistics show that only 1 in 20 divorce claims actually end up being debated in court. If your application is contested and you are in need of support immediately, you can ask the court to hear you on an urgent basis and issue a temporary decision giving you interim custody or support.

A court decision results and within 31 days of that decision, the parties are considered divorced and free to re-marry.

LAWimage

Sort By:

The template you are linking to has no template configured yet.

Duhaime Lawisms

I ask Your Honor to consider, as a mitigating circumstance, the fact that my client is very hard of hearing. It is in the nature of this pitiable infirmity that he should be, in a measure, deaf to the voice of conscience.
Anonymous defence attorney, Submissions on Sentence, quoted in 14 Crim. L. Mag & Rep. 944 (1892)

Expand Navigation

Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.